Although parties may contractually agree to undertake a separate obligation, the breach of which does not arise until some future date, the repurchase obligation undertaken by DBSP does not fit this description. To support its contrary position, the Trust relies on our decision in Bulova Watch Co. v <**25>Celotex Corp. (46 NY2d 606 ), where we considered whether the separate repair clause in a contract for the sale of a roof constituted a future promise of performance, the breach of which created a cause of action. The separate clause the seller included in that contract was a «20-Year Guaranty Bond,» which «expressly guaranteed that [the seller] would ‘at its own expense make any repairs . . . that may become necessary to maintain said Roof’ » (id. at 608-609).
We stored the make sure «embod[ied] an agreement unlike the new price to offer roofing system content,» the new infraction at which triggered the newest law away from constraints anew (id. on 610). This is very given that offender for the Bulova Check out «don’t only ensure the reputation otherwise overall performance of your own products, but provided to carry out a service» (id. from the 612). One provider is actually the new independent and distinct vow to repair a bad rooftop-a critical part of the new parties’ deal and you will «an alternate, separate and additional extra to buy» the brand new defendant’s unit (id. at 611). Properly, the latest «plans thinking about characteristics . . . had been susceptible to a half dozen-year law . . . powering ages occasioned anytime a violation of responsibility so you’re able to repair the newest bonded rooftop happened» (id.).
DBSP’s beat otherwise repurchase responsibility is actually this new Trust’s remedy for an excellent infraction ones representations and you may guarantees, perhaps not a promise of the loans’ upcoming overall performance
Brand new corrective clause for the Bulova Check out expressly protected future abilities out of the rooftop and undertook a vow to correct the fresh new rooftop in the event that they failed to satisfy the seller’s make sure. They https://paydayloanalabama.com/hatton/ [*7] portrayed and you will rationalized particular factual statements about the new loans’ features at the time of , when the MLPA and PSA have been carried out, and expressly stated that those individuals representations and you will guarantees failed to endure the fresh new closure big date. Instead of new separate make sure inside the Bulova Watch, DBSP’s dump otherwise repurchase responsibility cannot reasonably be viewed because the a definite promise from future abilities. It had been determined by, and even derivative away from, DBSP’s representations and you can warranties, which did not survive new closing and you will had been breached, if, on that time. [FN3]
In fact, little throughout the offer given that the eradicate otherwise repurchase responsibility perform continue for the life span of one’s funds
And it makes sense that DBSP, as sponsor and seller, would not guarantee future performance of the mortgage loans, which <**25>might default 10 or 20 years after issuance for reasons entirely unrelated to the sponsor’s representations and warranties. The sponsor merely warrants certain characteristics of the loans, and promises that if those warranties and representations are materially false, it will cure or repurchase the non-conforming loans within the same statutory period in which remedies for breach of contract (i.e., rescission and expectation damages) could have been sought. [FN4]
If the cure or repurchase obligation did not exist, the Trust’s only recourse would have been to bring an action against DBSP for breach of the representations and warranties. That action could only have been brought within six years of the date of contract execution. The cure or repurchase obligation is an alternative remedy, or recourse, for the Trust, but the underlying act the Trust complains of is the same: the quality of the loans and their conformity with the representations and warranties. The Trust argues, in effect, that the cure or repurchase <**25>obligation transformed a standard breach of contract remedy, i.e. damages, into one that lasted for the life of the investment-decades past the statutory period. But nothing in the parties’ agreement evidences such an intent. Historically, we have been